Rhonda G. Kern, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2000
01976423 (E.E.O.C. Mar. 10, 2000)

01976423

03-10-2000

Rhonda G. Kern, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rhonda G. Kern v. United States Postal Service

01976423

March 10, 2000

Rhonda G. Kern, )

Complainant, )

)

v. ) Appeal No. 01976423

) Agency No. 4F-950-1254-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On August 18, 1997, Rhonda G. Kern (hereinafter referred to as

Complainant) filed a timely appeal from the July 28, 1997, final decision

of the United States Postal Service (hereinafter referred to as the

agency) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as

amended, 29 U.S.C. ��791, 794(c). The appeal is timely filed (see 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with

64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).

For the reasons that follow, the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the Complainant has proven,

by a preponderance of the evidence, that the agency discriminated against

her on the bases of race/color (white), sex, and disability (on-the-job

injury) when she was terminated from her position as a Transitional

Employee in July 1996.

Complainant filed her formal complaint on September 26, 1996. After an

investigation, she was advised of her right to an immediate final agency

decision (FAD) or a hearing before an EEOC Administrative Judge, but she

did not respond. The agency issued its FAD, finding no discrimination.

Complainant was a transitional employee working as a letter carrier. In

early July 1996, she was injured while delivering mail.<2> According

to Complainant, she informed her supervisor (S1) of her injury when she

returned to the station, but he ignored her. S1 stated that Complainant

did not report the accident to him at that time and that management was

not aware of her injury until an inquiry about her limp approximately

ten days later. On July 17, 1996, Complainant was issued a notice

terminating her appointment based on her failure to immediately report

an accident and to maintain regular attendance; she was also given

thirty days administrative leave. S1 stated that Complainant had been

warned about her attendance problems in two discussions and that the

comparative employee she cited had failed to report an accident and was

similarly terminated. The record shows that Complainant had at least

80 hours of unscheduled absences between January and July 1996.

Generally, discrimination claims are examined under the tripartite

analysis first enunciated in McDonnell Douglas Corporation v. Green, 411

U.S. 792 (1973). Complainant must first establish a prima facie case

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. McDonnell

Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438

U.S. 567 (1978). The agency offers rebuttal to Complainant's inference

of discrimination by articulating a legitimate, nondiscriminatory reason

for its action(s). Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); see U.S. Postal Service Board of Governors

v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met its

burden, the complainant bears the ultimate burden to persuade the fact

finder by a preponderance of the evidence that the reasons offered by

the agency were not the true reasons for its actions but rather were

a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509

U.S. 502 (1993).

The agency explained that Complainant was terminated from her appointment

as a transitional employee because of attendance problems and failure to

report an accident in a timely manner. The record shows that Complainant

had a large number of unscheduled absences and had been previously advised

of this problem. Also, Complainant could not refute S1's contention

that she failed to report her injury in a timely manner. We find that the

agency articulated legitimate, nondiscriminatory reasons for its action.

In response, Complainant failed to demonstrate, nor does the record show,

that the agency's reasons for its action were not its true reasons or

based on prohibited considerations. Complainant's appeal, wherein she

asserts that the injury happened on July 2, is not probative of her

claim of discrimination.

Next, we address Complainant's claim of discrimination based on

disability. As a threshold matter, Complainant must show that she is a

person with a disability within the meaning of the Rehabilitation Act.<3>

This is defined as one who has, has a record of having, or is regarded

as having an impairment that substantially limits one or more major

life activities. 29 C.F.R. �1630.2(g). Major life activities include

caring for one's self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i).

Relatively brief and transitory illnesses or injuries, such as experienced

by Complainant in early July, that have no permanent or long-term effects

on a major life activity are not substantially limiting and, therefore,

do not rise to the level of a disability. See EEOC Compliance Manual,

Definition of the Term "Disability," �902.4(d). Here, Complainant has not

advanced any testimony or evidence to indicate that her injury was more

than a temporary impairment. For this reason, we find that Complainant

is not a person with a disability under the Rehabilitation Act. Thus,

we find that the agency did not discriminate against her on the basis

of disability.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the

absence of a legible postmark, the request to reconsider shall be deemed

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. �1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

March 10, 2000

___________

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ _________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2Complainant initially stated she was injured on July 3 but later

changed the date to July 2. The exact date of Complainant's injury is

not relevant to consideration of this matter.

3See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999); Sutton

v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel

Service, Inc., 527 U.S. 516 (1999).